NA TZHC Arusha2

INNE COURT Oi PPEAL OP ThNZLA.NIA AT ARUSHA CRIMINAL APPEAL NO @ 43 OF 1987 ANTONETA .1)/01 S1MS0N MATOIO . . IPELLA1 VERSUS THF REP1LLI -. - • , . RESPONDE1 (Appeal rrom the . on .o,on or the High Gout of Taa at usha) (Mushi, J) dated th-. 28th day of Novembc 1983 3, U Criminal Sessions Case No 2 of 1934 JDGMENT OF THE COURT The appellan: was convicted of the mu'd..er of a girl 'auet and is appealing from such conviction.. The appellant was alleged to have killed the deceased, apparently while the deceas& was aiJ.eeedJ.y in the appeliants house on the material da by he deceased0 According the postnortcii :3port had. died of shook and 8ue to having been strang1ed The only evid.eUc whi e .onn :'- t he appellant with the death of the deceased was given by ,.oeo, PL5 ach ffenoe was alleged to have been oommdt;ed on 16r1982 : and. when the trial took place in October, 1986 during which POW5 and PW6 testified, their rcopective ages were 12 years and 10 years, That would mean that at the time of the incident P 0 W,5 and P QW0 6 were respectively aged C and 6 years The trial judge was aware that these two witnesses were children of tender years.. It 'seemed he did carry out a o'e for each of them, althougJi ho as is usu.l, the o cpa., -2- questions pit and the, answers given by the child witness es.In eoh ease he stated that he was satisfied, after examintcn of the witnesses, that they did not know the nature of an oath, but that thr were possessed of sufficient intelligence and understood the duty of speaking the truth. He received the evidence of these two witnesses of tender years, presumably in terms of Section 127 (2) of the Evidence Act. .&ording to P.WI5 the deceased was seen by her entering the house of the appellant on the material day, and later P.L5 alleged she heard ones issuing from the said house. She did not see the deceased emerging from that house, but saw the appellant coming out, with her faøe óveed withróme• scratches. She next saw the dead body of the deoeased a short distame away from the house of the appellant the foUoying morning. P.W.6 also alleged that she had seen the deceased entering the appellant's house and of hearing oMes of pain issuing therefrom subecent1y, P.W.6 also alleged that the deceased was not seen coming of the house, but that the appellant did come out and sat outside. p 6 1,6 however stated that P.L5 was not there when the deceased entered tha appellant' s house, nor was P.W. 5 there when cries issued from the appUants house. The trial judge did consider the qiestion whether P.W.5 and P.W,6 could be believed. He realised that they were children of tender He however was of the view that young children tended to tell thC truth and testify to what they actually did see and hear. Thg tial judge then concluded that he found both P • W• 5 and P.W.6 tr'uthful and he believed their testimon.iy.. The trial judge did not warn himself of the danger of acting on videnQe given by children of tender years in terms of section 127 (3) the Evidence Act. Section 127 (3) 'states in part: ,1. ..... .the. Court may, after warning itself of the danger of doizig so, act on that evidence (i.e. evidence given in terms of section 127(2) to convict the accused....W 0 . *. . 0 . 03/. -3- The trial judge only satisfied himself that a child wiriswouJ4 normally tell the truth and he was satisfied that the tu withesses P.W.5 and P.L6 were truthful and he relied on their testuimony to convict the appellant of the offence charged.. We think the triel idge es erred. He could mt., without warning himself :Ln terms ofseothon 127 (3) of the Et j.en Act have acted on the evidence of P.WJ; a n d p.'W 0 6 His 4fai1L:o to warm himself in the brcumstances was fatal to the convictic'o. Again the tr:lal judge relied on an allegation that the appellant had given the deceased shs. 2OO/':.. tr the de to travel V. •V• / to Bombo as corroboration of the evidence given by P.,W xi. P.M. We fail to see how the alleged. neyment of shs. 200/= oo.hi be Audi corroborationQ The trial judge did not even refer to the ihcons±st snies that existed between the evidence given by P.W5 and ?...L6 as to whether P.W.5 was there when the deceased allegedly enered the appellantt s house In his judgment ,he judge 1riefly summarised tho ±dence of the prosecution a nd that of the appellant in her deforre.,. He then stated:- "This is the evidence in this case which A. have to consider and scrutinise carefully so ast o decide which evidence is believable and consequenUy what facts have been proved .... ...4" V The judge has erred here. He was not to decide whether he had to believe the version given by the appe:ilant The prosecution e.d. to prove its case beyond reasonable doubt; the defence had only to croate a ...../4.